Daves v. Cleary

• Decision Date: 16 June 2003
• Docket Number: No. 3655.,3655.
• Citation: 584 S.E.2d 423,355 S.C. 216
• Parties: Kibby DAVES and Jane Daves, Plaintiffs, v. Jim R. CLEARY, M.D.; Mary Black Memorial Hospital; Jack M. Cole, M.D., both individually and as Agent for Piedmont Internal Medicine Associates, P.A.; and Piedmont Internal Medicine Associates, P.A.; Defendants, Of whom Kibby DAVES is, Respondent, and Jim R. Cleary, M.D. is, Appellant.
• Court: South Carolina Court of Appeals

355 S.C. 216

584 S.E.2d 423

Kibby DAVES and Jane Daves, Plaintiffs, v. Jim R. CLEARY, M.D.; Mary Black Memorial Hospital; Jack M. Cole, M.D., both individually and as Agent for Piedmont Internal Medicine Associates, P.A.; and Piedmont Internal Medicine Associates, P.A.; Defendants,

Of whom Kibby DAVES is, Respondent, and

Jim R. Cleary, M.D. is, Appellant.

No. 3655.

Court of Appeals of South Carolina.

Heard April 8, 2003.

Decided June 16, 2003.

Rehearing Denied August 22, 2003.

William S. Brown, of Greenville, for Appellant.

David W. Goldman, Diane M. Rodriguez, and Kristi F. Curtis, all of Sumter, for Respondent.

CURETON, J.:

In this medical malpractice case, the physician appeals from a jury verdict in favor of the patient. The physician alleges the circuit court judge erred in (1) failing to give requested instructions regarding the standard of care; (2) allowing the patient's medical expert to testify regarding the standard of care; (3) failing to grant a motion for a directed verdict or new trial; and (4) failing to grant a new trial where there were inconsistent verdicts. We affirm.

FACTS

On March 23, 1996, Kibby Daves and his wife, Jane, visited with his parents and ate fried fish. On their way back from his parents' house, Daves and Jane stopped at her parents' house to visit, where Daves began to suffer from chest pains, nausea, and vomiting. The pain radiated to his shoulder, but the pain was later relieved after Daves burped several times. Daves had suffered a heart attack in 1986, so the pain alarmed him enough to go to the hospital. By the time he arrived at the hospital, however, his pain was gone. Daves informed Dr. Cole, his primary physician, that the pain was different from the pain he suffered with his 1986 heart attack because it was not as severe and the pain went away. After an EKG was performed, it was determined that Daves's pain was gastrointestinal in origin and he was sent home.

On March 25, 1996, Daves awoke at 8:30 a.m. suffering from severe pain that was similar to the pain he suffered with his 1986 heart attack. He believed he was having another heart attack. The pain radiated down his arms and back and he was sweating, restless, anxious, and clutching his chest. When he arrived at the emergency room, Dr. Jim R. Cleary began treating Daves. Daves repeatedly told Cleary that he was having a heart attack, but Cleary believed Daves was either suffering from gallbladder pain or some other gastrointestinal disorder. Daves informed Cleary that his gallbladder had been removed years before and that he was positive he was having a heart attack. Cleary continued to insist that Daves was not having a heart attack, and he thumped on Daves's chest and remarked "its not your ticker." An EKG performed on Daves failed to show any acute changes to his condition. A test performed at 10:30 a.m. showed normal levels of cardiac enzymes.

As the morning progressed, Cleary treated Daves for a gastrointestinal irritation and ran tests to determine if Daves had gallstones in his common bile duct. When nitroglycerin failed to relieve Daves's pain, Cleary administered an antianxiety drug which made Daves lose consciousness. Daves does not recall what happened during that time, but remembers that every time he woke up he was in severe pain.

Daves remained in the emergency room and was not admitted into the hospital until 2:30 that afternoon. Dr. Cole, his primary physician, did not see him until 6:00 p.m., at which point a cardiac enzyme test indicated that Daves had suffered from a massive heart attack. Daves began to receive treatment for the heart attack, but by this point severe damage to his heart muscles had already occurred, resulting in congestive heart failure. As a result of his condition, Daves underwent two heart catheterizations, three thoracentesis procedures in order to drain fluid from his lungs, and also a triple bypass operation. Daves has been disabled since his March 25, 1996 heart attack. His medical bills total $139,967.91.

Daves sued Cleary, the hospital, and his primary physician for medical negligence and personal injury. Jane sued the same defendants for loss of consortium.¹

Dr. David Maron testified as an expert witness for Daves. He stated that because cardiac enzymes showing heart damage may take up to two hours to manifest, Cleary violated the standard of care for emergency room physicians treating a patient with chest pains when he failed to order repeated EKG's and repeated cardiac enzyme tests to monitor a developing heart attack in time to appropriately treat it. According to Maron, Cleary's failure to adequately check Daves's vital signs, failure to adequately check Daves's medical history regarding gallbladder surgery, failure to request a cardiac consult, and failure to administer any clot-dissolving medication fell below the standard of care for an emergency room doctor.

The jury found for Daves and against Cleary on the medical malpractice claim and awarded him $500,000 in actual damages, but it also found for the primary physician and the hospital on the negligence claim. The jury initially found for Jane on the loss of consortium claim against Cleary, but it awarded her $0 in damages. The circuit court refused to accept the loss of consortium verdict, instructing the jury that it either had to find for Jane and award her at least a nominal amount of damages or find in favor of Cleary. The jury returned with a verdict in favor of Cleary, the hospital, and the primary physician as to Jane's loss of consortium claim. This appeal follows.

LAW/ANALYSIS

I. JURY CHARGE

Cleary argues the circuit court erred in improperly charging the jury on the standard of care for physicians. We disagree. Cleary submitted several requests to charge to the circuit court regarding the standard of care. In four of the requests to charge, Cleary asked the court to charge that Daves was required to show the recognized practices and procedures which would be exercised by a competent practitioner "in the defendant doctor's field of medicine," "in the same specialty," "in the particular branch of healing art in which" the defendant doctor is trained, or of a "particular school of thought," under the same or similar circumstances. Cleary requested that the circuit court charge the jury the specific language that a physician is held to the standard of care of a competent physician in his field of medicine or area of medical specialty. The trial judge denied Cleary's request, stating that he believed the charge he intended to give the jury addressed the "field of medicine" issue, although not as specifically as Cleary would have liked. The judge then read the following charges to the jury regarding the standard of care:

Malpractice, by definition, is the failure to diagnose, treat, or care for a patient in accordance with good proper accepted medical practice resulting in harm to the patient.

...

What the law requires is that in the practice of his vocation he will exercise that degree of knowledge, care and skill ordinarily possessed by members of his profession in good standing under the same or similar circumstances.

...

He would also be liable, if having the requisite skill, he negligently fails to use it or he is not as careful and diligent in the diagnosis, treatment or care to the extent that he should be, which is to say as a careful and diligent physician of ordinary prudence would have been under the same circumstance.

...

In a case such as this, negligence is the failure to do that which an ordinary careful and prudent physician would do under the same circumstances, or it is the doing of that which an ordinary-ordinarily prudent physician would not have done under the existing circumstances.

The standard, which I have already told you-the standard is that which I have already told you. Did the physician exercise that degree of knowledge, care and skill possessed by the members of his profession in good standing similarly situated under the same or similar circumstances.

...

What are the generally recognized and accepted practices and procedures which would be followed by the average competent practitioners in the defendant's profession under the same or similar circumstances; two, in what manner, if any, he departed from such practices or procedures; and, three, was the defendant's departure from such generally recognized practices and procedures, if any, a proximate cause of the plaintiffs alleged injuries or damages?

After the trial judge gave the jury instructions, Cleary restated his objection that the charges did not include the medical specialty language.

The circuit court must charge the current and correct law to the jury. McCourt by and through McCourt v. Abernathy, 318 S.C. 301, 306, 457 S.E.2d 603, 606 (1995)

; Cohens v. Atkins, 333 S.C. 345, 349, 509 S.E.2d 286, 289 (Ct.App.1998). "When reviewing a jury charge for alleged error, an appellate court must consider the charge as a whole in light of the evidence and issues presented at trial." Welch v. Epstein, 342 S.C. 279, 311, 536 S.E.2d 408, 425 (Ct.App. 2000) (citing Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 514 S.E.2d 570 (1999)). If the charge is reasonably free from error, isolated portions which might be misleading do not constitute reversible error. Id. A jury charge is correct if it contains the correct definition and adequately charges the law. Keaton, 334 S.C. at 495-96,

514 S.E.2d at 574. The substance of the law is what must be charged, not any particular verbiage. Id. at 496, 514 S.E.2d at 574. A circuit court's refusal to give a properly requested charge is reversible error only where the requesting party can demonstrate prejudice from the refusal. Cohens, 333 S.C. at 349,

509 S.E.2d at 289.

Several cases have addressed jury charges regarding the applicable standard of care in medical malpractice cases. In Cox v. Lund, 286 S.C. 410, 334 S.E.2d 116 (1985), our state ...